Death in Texas

1.

In the twenty-first century, a state governor represents the last vestige of the “divine right of kings,” because he has absolute power over life and death—especially when such power is entrusted to politicians motivated more by expediency than by conscience. Faced with a pending execution, no governor wants to appear callous about human life. So governors appoint pardons boards and meet with legal counselors, who take the political heat for controversial cases. All governors claim to agonize over death penalty decisions. All claim to scrutinize every possible angle of the cases of condemned persons facing execution under their watch.

George W. Bush during his six years as governor of Texas presided over 152 executions, more than any other governor in the recent history of the United States. Bush has said: “I take every death penalty case seriously and review each case carefully…. Each case is major because each case is life or death.” In his autobiography, A Charge to Keep (1999), he wrote, “For every death penalty case, [legal counsel] brief[s] me thoroughly, reviews the arguments made by the prosecution and the defense, raises any doubts or problems or questions.” Bush called this a “fail-safe” method for ensuring “due process” and certainty of guilt.

He might have succeeded in bequeathing to history this image of himself as a scrupulously fair-minded governor if the journalist Alan Berlowhad not used the Public Information Act to gain access to fifty-seven confidential death penalty memos that Bush’s legal counsel, Alberto R. Gonzales, whom President Bush has recently nominated to be attorney general of the United States, presented to him, usually on the very day of execution.1 The reports Gonzales presented could not be more cursory. Take, for example, the case of Terry Washington, a mentally retarded man of thirty-three with the communication skills of a seven-year-old. Washington’s plea for clemency came before Governor Bush on the morning of May 6, 1997. After a thirty-minute briefing by Gonzales, Bush checked “Deny”—just as he had denied twenty-nine other pleas for clemency in his first twenty-eight months as governor.

But Washington’s plea for clemency raised substantial issues, which called for thoughtful, fair-minded consideration, not the least of which was the fact that Washington’s mental handicap had never been presented to the jury that condemned him to death. Gonzales’s legal summary, however, omitted any mention of Washington’s mental limitations as well as the fact that his trial lawyer had failed to enlist the help of a mental health expert to testify on his client’s behalf. When Washington’s postconviction lawyers took on his defense, they researched deeply into his childhood and came up with horrifying evidence of abuse. Terry Washington, along with his ten siblings, had been beaten regularly with whips, water hoses, extension cords, wire hangers, and fan belts. This was mitigation of the strongest kind, but Washington’s jury never heard it. Nor is there any evidence that Gonzales told Bush about it.

Bush wrote in his autobiography that it was not his job to “replace the verdict of a jury unless there are new facts or evidence of which a jury was unaware, or evidence that the trial was somehow unfair”^2. But new information about a mentally retarded man’s battered, abused childhood that his jury never got to hear—wouldn’t that qualify?

When Berlow asked Gonzales directly whether Bush ever read the clemency petitions, he replied that he did so “from time to time.” Instead, Bush seems to have relied on Gonzales’s summaries, and they clearly indicate that Gonzales continuously sided with the prosecutors. One third of his summary of Terry Washington’s case is devoted to a detailed description of the gruesome aspects of the crime, while he fails to mention Washington’s mental limitations and his miserably ineffective defense lawyer. In response to Berlow’s direct question, Gonzales admitted that his conferences with Bush on these cases typically lasted no more than thirty minutes. Berlow confirmed this for himself when he looked at Bush’s appointment calendar for the morning of Washington’s execution and saw a half-hour slot marked “Al G—Execution.”

To distance himself from his legal and moral responsibility for executions, Bush often cited a Texas statute that says a governor may do nothing more than grant a thirty-day reprieve to an inmate unless the Texas Board of Pardons and Paroles has recommended a broader grant of clemency. But any time he wanted to, Bush could have commuted a sentence or stopped an execution. By the end of his governorship Bush had appointed all eighteen members of the board of pardons. He could easily have ordered a thirty-day reprieve and gotten word to the board that he had doubts about the fairness of a case and wanted an investigation and hearings. But the Texas pardons board has been a farce. In my home state the Louisiana Board of Pardons and Paroles meets and holds hearings. True, they routinely deny clemency, but they at least give the appearance of being a real, working board. The full Texas pardons board never meets to consider a death sentence. A few of them talk to one another on the phone. Sometimes. No one knows whether the clemency appeals are even read. As governor, Bush did nothing to reform the board’s procedures.

In the Henry Lee Lucas case in 1998, Bush showed where the real power lay. He intervened with the Texas pardons board before they had a chance to make a recommendation, and after his intervention, the board handed him the decision he wanted: a 17–1 vote for commutation of Lucas’s death sentence. The Henry Lee Lucas case gained national attention when it came to light that Lucas had been condemned to death for a Texas murder he couldn’t possibly have committed, since he wasn’t in the state at the time. Additionally, it was clear that Lucas would never be a threat to society because he was already serving six life sentences for other murders, which he may or may not have committed, since on a fairly regular basis he confessed falsely to hundreds of murders. Bush pointed out that jurors at his trial “did not know” certain facts that later came to light.

To make sure that he never had to examine death sentences seriously, Governor Bush used a legal tactic similar to the one used by the US Supreme Court to block death row petitioners’ access to constitutional claims. He restricted the standard for clemency so severely that no petitioner could qualify. He stated that since the courts had “thoroughly examined” every obscure detail of a death row petitioner’s claims and found no grounds for injustice, it was not his place to “second-guess” the courts. In his autobiography Bush wrote,

In every [death] case, I would ask: Is there any doubt about this individual’s guilt or innocence? And, have the courts had ample opportunity to review all the legal issues in this case?

But, of course, the courts would already have reviewed and rejected the legal issues of death row petitioners’ cases before they landed on Bush’s desk. As governor, Bush was literally the court of last resort for a condemned man or woman, vested with authority to dispense mercy or withhold it, according to his personal judgment. Unlike the courts, he was not restricted to pure legalities. As far back as 1855, the US Supreme Court saw compassion and mercy as central to the exercise of gubernatorial clemency. This means that governors and their boards are free to consider any basis for mercy: mental handicaps, mental illness, childhood abuse, incompetence of defense counsel, remorse, racial discrimination in juries, signs of rehabilitation.

Not uncommonly, such new mitigating facts come to light only years after the trial, facts that the trial jury has never heard and that appeals courts, following “procedural logic,” routinely refuse to consider. In the commutation of Lucas’s sentence, Bush well knew how to use “new facts” that the trial jury “did not know” to persuade the Texas pardons board to do his bidding. It was not a lengthy, morally complex process. Bush stated his request and his board delivered.

If the jury that sentenced Karla Faye Tucker—another Texan whose death warrant Bush signed—had known of her drug-ridden childhood prostitution, would they have found mitigating circumstances to spare her life? And if, as her jury considered “future dangerousness,” they could have been made aware of the potential for good in her character that would later make her such an exemplary prisoner, would they still have voted to kill her? The jury, deprived of foresight and without thorough investigation into Karla Faye’s childhood, did not have access to these “new facts,” but George W. Bush did. In the Lucas case, when “new facts” presented themselves, Governor Bush requested the Texas pardons board for commutation. When “new facts” in Karla Faye Tucker’s case came to Bush’s attention, he turned away, claiming that he was bound to follow the courts’ decisions.

Berlow writes, “The fact that courts have rejected a defendant’s legal claims arguably places an added burden on a governor—as the conscience of the state…—to conduct a scrupulous review.” How, then, could Bush’s legal counsel, Alberto Gonzales, systematically neglect to provide mitigating evidence or “new facts” that the petitioners’ juries had never heard? For the man who said that the nature of the war on terror “renders obsolete [the Geneva conventions’] strict limitations on questioning of enemy prisoners” and called the conventions “quaint” when issuing guidelines for the treatment of prisoners at Guantánamo, this is not surprising.

2.

Gonzales routinely produced exactly the kind of clemency review his boss wanted—a purely formal exercise, which never seriously entertained the possibility of real clemency for anyone. When Bush left the governor’s office, he had denied clemency in all cases and refused to commute from death to life imprisonment a single death sentence but one—that of Henry Lee Lucas—and that because knowledge of Lucas’s innocence of the murder for which he was about to be killed had become the subject of such national scrutiny that Bush could not afford politically to ignore it. Besides, the Lucas case became public during the 2000 presidential campaign, when Bush had begun to portray himself as a “compassionate conservative.”

By the time Bush had served as governor for a little over five years, he had already presided over the executions of 130 men and one woman. Using the “thirty-minute formula,” the clemency petitions of the men were denied with dispatch, but the plea for clemency by the woman, Karla Faye Tucker, presented a special challenge. By the time Tucker climbed onto Texas’s lethal injection gurney, whispering, “Lord Jesus, help them to find my vein,” her name had become a household word, not only in the United States, but around the world. Larry King’s in-depth interviews with her on CNN made people feel they knew her personally.

Her crime could not have been more brutal. She had killed two people with a pickax as they lay helplessly in bed. But now people were talking about her fate, as arguments for and against clemency for condemned killers crystallized with new intensity.

The argument in favor of clemency for Karla Faye Tucker went like this: Yes, she’s guilty of a horrible crime—she killed two helpless people with a pickax—but she seems genuinely remorseful for her crime; she seems to have undergone a genuine, life-changing religious conversion. Even the warden and corrections officers attest that for fourteen years she’s been a model prisoner. Couldn’t she spend the rest of her life helping other prisoners to change their lives? Is a strict “eye for an eye” always called for?

On television screens across America, people saw Karla Faye Tucker’s beautiful face as she talked about reading the Bible in her prison cell (she admitted to stealing the Bible, not realizing it was free for the asking) and discovering Jesus, who “changed my life.” In following Christ, she said, she had truly been made into a “new creation.”

If only Karla Faye Tucker had not been so sincere, so human.

When Gonzales presented Governor Bush with the Karla Faye Tucker case, a woman hadn’t been executed in Texas in more than a hundred years. What was a “compassionate conservative” governor to do, especially one who claimed to be “born again”? Bush the politician knew that once he included religious conversion as a qualifier for clemency, his legalistic formula—stand behind court verdicts no matter what—would go up in smoke: others facing execution could claim that they too had been “born again” and so deserved clemency. Trapped in this political quagmire, he’d surely be accused of “second-guessing” the courts, and pro-death constituents would be displeased. Better, as Justice Scalia did, to stick to the tried-and-true formula of retribution, which justified the sentence of death without reference to whether or not criminals changed their lives while awaiting execution. Retributive justice was just that—justice. You did the crime, you pay the price. By refusing to show favoritism, Bush would demonstrate the moral “toughness” required of a national leader. He could show that he “followed the law” even though his personal sympathies pulled him in another direction. This meant that no matter how strong the opposition to her execution, Karla Faye Tucker had to die.

During her interviews with Larry King, she had looked directly into the camera and in a soft voice, in an unwavering, guileless tone, told the story of her life, presenting, for the first time, horrific childhood experiences her jury had never heard. Her chance for a loving, nurturing family had been shattered early on by her parents, who fought and finally divorced, leaving young Karla Faye and her older sisters on their own to fend for themselves. Karla Faye first smoked pot with her older sisters when she was eight years old. By the time she was thirteen, she was shooting heroin. A year later, she dropped out of school and followed her mother into prostitution. She knew how to fight with her fists. She moved in and out of turbulent relationships with men. There were always drugs. There was always violence.

On the night of June 11, 1983, Karla Faye and friends began a weekend bash of heroin, cocaine, and pills. Two days later at 3:00 AM, sleepless and high on drugs, Karla Faye Tucker and her boyfriend, Danny Garrett, entered the apartment of Jerry Lynn Dean, whom Karla Faye had met two years earlier when he dated her best friend. There had always been animosity between them. On the night of the murders, Karla Faye’s original aim had been to steal Dean’s motorcycle, but once she was inside the apartment, the plan for robbery escalated into a frenzied act of double murder. Deborah Thornton, who shared Dean’s bed that night, became an unwitting victim. Afterward, still high on drugs, Karla Faye bragged to friends that the killings aroused her sexually.

When arrested, Karla Faye Tucker readily confessed to the murders and implicated Garrett. The jury sentenced her to die. Johnny Holmes, the Harris County district attorney, was proud that he obtained more death penalties than any other DA in Texas. For Holmes, Karla Faye Tucker’s death sentence was just one more political trophy. He could brag that he was an “equal opportunity” district attorney, unafraid to impose tough sentences on women.

I visited Karla Faye Tucker and the other women on Texas’s death row in October 1997, four months before her execution. I had been invited by Pam Perillo, Karla Faye’s friend, who was also on death row.3 Pam told me in a letter how she had watched Karla Faye change. She said that when Karla Faye had first arrived at the Mountain View Unit, “she had the foulest mouth you can possibly imagine” and would “snarl” at anyone who tried to befriend her. “She was far from the Lord,” Pamela said, “definitely not saved.”

In his autobiography, Bush claimed that the pending execution of Karla Faye Tucker “felt like a huge piece of concrete…crushing me.” But in an unguarded moment in 1999 while traveling during the presidential campaign, Bush revealed his true feelings to the journalist Tucker Carlson. Bush mentioned Karla Faye Tucker, who had been executed the previous year, and told Carlson that in the weeks immediately before the execution, Bianca Jagger and other protesters had come to Austin to plead for clemency for her. Carlson asked Bush if he had met with any of the petitioners and was surprised when Bush whipped around, stared at him, and snapped, “No, I didn’t meet with any of them.” Carlson, who until that moment had admired Bush, said that Bush’s curt response made him feel as if he had just asked “the dumbest, most offensive question ever posed.” Bush went on to tell him that he had also refused to meet Larry King when he came to Texas to interview Tucker but had watched the interview on television. King, Bush said, asked Tucker difficult questions, such as “What would you say to Governor Bush?”

Carlson was shocked.4 He couldn’t believe Bush’s callousness and reasoned that his cruel mimicry of the woman whose death he had authorized must have been sparked by anger over Karla Faye Tucker’s remarks during the King interviews. When King had asked her what she planned to ask Governor Bush, Karla Faye had said she thought that if Bush approved her execution, he would be succumbing to election-year pressure from pro–death penalty voters.

Election-year pressure?

Bush was receiving thousands of messages urging clemency for Tucker, including one from one of his daughters. “Born-again” evangelists such as Pat Robertson and Jerry Falwell, normally ardent advocates of execution, urged him to commute Tucker’s sentence. When Pope John Paul II urged Bush to grant mercy to Tucker, Bush responded disingenuously in a letter to the Pope, saying, “Ms. Tucker’s sentence can only be commuted by the Governor if the Texas Board of Pardons and Paroles recommends a commutation of sentence.” On several occasions, Bush stated publicly that in deciding Karla Faye Tucker’s fate, he was seeking “guidance through prayer,” adding that “judgments about the heart and soul of an individual on death row are best left to a higher authority.”

But there was no way Bush could avoid the godlike power thrust on him as governor. When Russian president Vladimir Putin declared that life-or-death judgments should be “left to the Almighty,” he meant that such supposed judgments, even if they are believed to be divine, cannot properly be discerned and administered by flawed human agents. This recognition led him to oppose government executions. But while Bush claimed to leave the judgment of Karla Faye Tucker to God, in reality he exercised his own political judgment and authorized her death.

Karla Faye’s death hit me hard. During my visit with her, she and Pam Perillo sat with me in a small chapel and we talked together for an hour. Karla Faye said that she wasn’t afraid of dying, but she dreaded the long car trip with the guards to Huntsville. Once before, when they had accompanied her to a court hearing, they had taunted her and delayed when she asked them to stop so she could “go to the bathroom.” She said she had “delicate intestines” and a delay in getting to a toilet could prove “disastrous.” “During those rides,” she explained, “the guards have you in their power. Some are kind, but others are mean and not fond of me because I’ve gotten so much publicity.”

It reminded me of an incident recorded in the account of the martyrdom of Saint Ignatius of Rome, in which the saintly bishop, upon arriving at the Colosseum, where hungry lions awaited, bumped his shin as he stepped out of the carriage. The man was about to be torn apart limb from limb and the hagiographer felt the need to record that he bumped his shin? Yet there it is, the incident forever recorded, one small glimmer of the saint’s vulnerable humanity.

Here was Karla Faye, a woman who had transformed her life and would have been a source of healing love to guards and prisoners for as long as she lived, yet the iron protocol of retributive justice demanded that she be put to death. It was as if Bush and Albert Gonzales and the pardons board had freeze-framed Karla Faye Tucker in the worst act of her life, then freeze-framed themselves into killing her. That’s the way a machine works, relentless and preordained, with no room for the personal transcendence that conscience gives. It was all so mechanical, so unthinking, so political. That’s why on the night of Karla Faye’s killing, my anger at George W. Bush turned to outrage when Larry King aired Bush’s press statement and I heard the way Bush invoked God to bless his denial of clemency. I already knew the substance of Bush’s position toward Karla Faye, but I had never heard the last sentence of his press statement: “May God bless Karla Faye Tucker and may God bless her victims and their families.”

Immediately after the statement, King turned to me for a response. When I heard Bush say, “God bless Karla Faye Tucker,” I had to struggle to keep a vow I made to reverence every person, even those with whom I disagree most vehemently. Inside my soul I raged at Bush’s hypocrisy, but the broadcast was live and global. With not much time to rein myself in, I took a quick breath, said a fierce prayer, looked into the camera, and said, “It’s interesting to see that Governor Bush is now invoking God, asking God to bless Karla Faye Tucker, when he certainly didn’t use the power in his own hands to bless her. He just had her killed.”

As governor, Bush certainly did not stand apart in his routine refusal to deny clemency to death row petitioners, but what does set him apart is the sheer number of executions over which he has presided. Callous indifference to human suffering may also set Bush apart. He may be the only government official to mock a condemned person’s plea for mercy, then lie about it afterward, claiming humane feelings he never felt. On the contrary, it seems that Bush is comfortable with using violent solutions to solve troublesome social and political realities.

The aphorism “A hammer, when presented with a nail, knows to do only one thing” applies, par excellence, to George W. Bush. As governor of Texas, Bush tackled the social problem of street crime by presiding over the busiest execution chamber in the country. At the time of the thirteen death row exonerations in Illinois, Bush stated publicly that although states such as Illinois might have problems with a faulty death penalty system, he was certain that in Texas no innocent person had ever been sent to death row, much less executed. That remains to be seen. What is clear is that he had, as governor, no quality of mercy.